Legislation Needed to Correct Widespread Errors in use of National Security Letters

In reports issued in March 2007 and March 2008, the Department of Justice Inspector General (IG) found widespread errors and violations in the FBI’s use of National Security Letters to obtain bank, credit and communications records of U.S. citizens without judicial approval. CDT has called upon Congress to establish checks and balances for such government access to sensitive information.

1) Legislation Needed to Correct Widespread Errors in Use of National Security Letters

In reports issued in March 2007 and March 2008, the Department of Justice Inspector General (IG) found widespread errors and violations in the FBI’s use of National Security Letters to obtain bank, credit and communications records of U.S. citizens without judicial approval. CDT has called upon Congress to establish checks and balances for such government access to sensitive information.

National Security Letters (NSLs) are simple form documents signed by officials of the FBI and other agencies compelling disclosure of personal information without prior judicial authorization. NSLs can be served on credit companies, telephone carriers, Internet Service Providers, and financial institutions.

In October 2001, the PATRIOT Act dramatically weakened the standard for issuing NSLs by removing the requirement that the records sought with the NSL pertain to an “agent of a foreign power” such as a terrorist or a spy. The PATRIOT Act also eliminated the requirement that the government be able to articulate the factual basis for its suspicion. Current law merely requires an FBI official to state – purely for internal purposes — that the records are “relevant to” or “sought for” foreign counter intelligence or terrorism purposes. Furthermore, an amendment adopted in 2003 dramatically expanded the institutions subject to NSLs to include travel agencies, real estate agents, jewelers, the Postal Service, insurance companies, casinos, car dealers and others.

Among other things, the IG found that the FBI issued NSLs when it had not even opened the investigation that is the only predicate for issuing an NSL. It found that the FBI retains almost indefinitely the information it obtains with an NSL, even if the record subject turns out to be innocent of any crime and of no intelligence interest. It also found that the Attorney General had refused to adopt adequate “minimization” procedures designed to protect the privacy of information about innocent Americans obtained with an NSL, even though an interagency working group had recommended such procedures.

2) Self-Policing Does Not Work to Address the Core Problems with NSLs

In response to the Inspector Generalâ€™s March 2007 report, the FBI issued detailed guidance setting some new internal requirements for NSLs. The guidance puts in place useful procedures – and training programs have been conducted – that will make it less likely that FBI agents seek with NSLs information they are not entitled to receive. The procedures also make it less likely that agents will use NSLs to seek information without having first opened an investigation. They will also make it more likely that when the recipient of an NSL turns over more information than was requested, the information is returned or destroyed if it is irrelevant, rather than being retained in an FBI database and shared widely within the government.

However, internal reforms cannot fix the most egregious problems the IG has identified, all of which flow from the lack of any external checks and balances. The IG found that reviews of NSL requests conducted by supervisory FBI attorneys were insufficient. In some instances, for example, the supervisorâ€™s approval memo was inconsistent with the case agentâ€™s request, suggesting that supervisors were not carefully reading case agent claims. Even more tellingly, the IG expressed concern that mid-level supervisors in FBI field offices were reluctant to turn down NSL requests for fear of antagonizing their supervisor — the head of the field office. Most importantly, the IG also found that the FBI had used NSLs to circumvent the FISA Court’s refusal to authorize surveillance on First Amendment grounds.

While the IG didn’t say so, his report shows that self-policing doesn’t work. The only way to truly address the problems posed by NSLs is to legislate traditional checks and balances, under which a judge must approve governmental access to sensitive information, under a tighter standard than mere relevance.

3) Intelligence Surveillance Tools Require More Oversight

The government seeks to minimize concerns with NSLs by arguing that they are just like grand jury subpoenas in criminal investigations, which are also issued without judicial approval and on a mere relevance standard. However, intelligence investigations are more dangerous to liberty than criminal investigations and therefore require stronger compensating protections.

Intelligence investigations are broader than criminal investigations. They are not limited by the criminal code. They can investigate legal activity, including First Amendment activity. They can even focus solely on First Amendment activities when the subject of the investigation is a foreign national, and primarily on First Amendment activities when the subject is an American.

Intelligence investigations are conducted in much greater secrecy than criminal cases, even perpetual secrecy. When a person receives a grand jury subpoena, normally he can publicly complain about it. In intelligence cases, in contrast, a business receiving an NSL is gagged from complaining about it, and the subject of the NSL never learns of it.

Finally, in a criminal investigation almost everything the government does is ultimately exposed to scrutiny. Thatâ€™s a powerful constraint. There is no public airing at the end of an intelligence investigation.

Because records demands in intelligence investigations receive so little after-the-fact review, they need stronger protections at the front end.

Two weeks ago, CDT testified before the Senate Judiciary Committee about the need for reform of NSLs and in support of legislation that would establish meaningful checks and balances on this governmental power.

The National Security Letter Reform Act, S. 2088, goes to the core issue. First, it would separate information that can now be obtained with an NSL into sensitive and less sensitive categories. The less sensitive information — including information identifying a customer by name and address — would continue to be available to the government by means of an NSL. However, the bill would tighten the standard for issuing NSLs even for less sensitive information, to prevent fishing expeditions. Other, more sensitive information, such as telephone dialing information, the ‘To” and “From” lines on email, and the details of one’s checking and credit card transactions would require a court order. The bill would also impose a time limit on the “gag orders” that normally accompany NSLs and would require that any gag be narrowly tailored.

The House counterpart, the National Security Letters Reform Act (H.R. 3189), would not require judicial approval, but it would impose a time limit and tighter requirements on issuance of gag orders. The House bill would also return to the pre-PATRIOT “agent of a foreign power” standard for issuing NSLs. It would create a civil damages remedy against “any person issuing or obtaining the issuing” of an NSL contrary to law. Both bills would require the Attorney General to issue strong minimization procedures to protect irrelevant information pertaining to Americans.

CDT supports the bills on the ground that they would provide the government the tools it needs to prevent terrorism while helping to ensure that those tools are subjected to appropriate checks and balances.